Senate

Revised Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Scott Morrison MP)

Chapter 16 Carer allowance

Outline of chapter

Schedule 16 to the Bill makes amendments to the Social Security Administration Act to align carer allowance and carer payment start day provisions, by removing provisions that apply to backdate a person's start day in relation to payment of carer allowance in certain circumstances. The general start day rules under Part 2 of Schedule 18 to the Social Security Administration Act will apply to determine the date of effect of a decision to grant carer allowance.

Background

Schedule 18 of the Social Security Administration Act deals with working out the start day for various social security payments and concessions. Part 3 of Schedule 18 deals with working out a backdated start day in relation to certain social security payments, including carer allowance. The backdated start day under Part 3 may be a day that is earlier than the day worked out under the general start day rules in Part 2 of Schedule 18.

Under items 16 and 17 of Part 3 of Schedule 18 to the Social Security Administration Act, the start day for carer allowance for a disabled child, or for an adult where the disability affecting the adult is due to an acute onset, may be up to 12 weeks before the day on which the person made a claim. The start day cannot be earlier than the date of the disability for a child, or the date of acute onset of the disability for an adult, even if that date is less than 12 weeks before the date of claim. By contrast, the start day for carer payment cannot be earlier than the day worked out under Part 2 of Schedule 18.

The amendments made by this Schedule will not affect whether a person is qualified for carer allowance, but mean a person's start day for carer allowance will be the day worked out under the general start day rules in Part 2 of Schedule 18.

The amendments made by this Schedule commence on the later of 1 January 2017 and the day after this Act receives the Royal Assent.

Explanation of the changes

Amendments to the Social Security Administration Act

Item 1 repeals clauses 16 and 17 of Schedule 18 to the Social Security Administration Act, meaning a person's start day for carer allowance will not be backdated to a day before the start day worked out under the general start day rules in Part 2 of Schedule 18 to the Social Security Administration Act.

Item 2 is an application provision which states that the amendment made by item 1 of this Schedule applies to claims for carer allowance made on or after the commencement of that item.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Carer allowance

This Schedule is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview

This Schedule amends the Social Security Administration Act 1999 to change the earliest date of effect for a grant of carer allowance to the date the claim is lodged or the date of first contact with the Department of Human Services. New claims for carer allowance received after 1 January 2017 will no longer be able to be backdated up to 12 weeks before the person contacted the Department of Human Services about carer allowance.

The start day for carer allowance for a person caring for a child under the age of 16 years can currently be backdated up to 12 weeks before the date of claim for a person caring for a child with disability.

The start day for carer allowance (adult) can currently be backdated up to 12 weeks before the date of claim for a person caring for an adult with a disability, provided the disability is due to an acute onset.

Human Rights implications

Right to Social Security

This Schedule engages the right to social security as recognised in Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The right to social security requires that a system be established under domestic law, and that public authorities must take responsibility for the effective administration of the system. The social security scheme must provide a minimum level of benefits to all individuals and families that will enable them to cover essential living costs. Carer allowance itself is not an income support payment and may be paid in addition to an income support payment, such as carer payment. Carer allowance recipients, therefore, have access to additional personal income or social security income support to cover essential living costs. Other social security payments are not affected by this measure.

The United Nations Committee on Economic, Cultural and Social Rights (the committee) has stated that a social security scheme should be sustainable and that the conditions for benefits must be reasonable, proportionate and transparent (see General Comment No. 19). This measure will ensure that the social security system remains sustainable and targeted to those recipients with the greatest need.

The amendments will also align the date of effect for the grant of carer allowance with other social security payments made under the Social Security Act.

Conclusion

The amendments made by this Schedule are compatible with human rights because:

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they do not affect a person's entitlement to income support payments, such as carer payment;

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to the extent that the changes reduce the period from which carer allowance is payable, the reduction is reasonable, necessary and proportionate to achieving a legitimate aim; and

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they do not limit or preclude eligible persons from gaining or maintaining access to carer allowance under the Social Security Act, 1991.